And the Trump Administration’s Freeze This article is the latest installment of QuickRead articles on ESOP regulations. Specifically, it focuses on the request, and status thereof, for the Department of Labor to clarify “adequate consideration” for the valuation of entities held in ESOPs. This article is the latest installment of QuickRead articles on ESOP regulations.[1] Specifically, it focuses on the req ...

Part II For purposes of valuing an ESOP, the question of what is “adequate consideration” has vexed the author and other BV practitioners. In this article, the author shares an update on the DOL’s response to earlier inquiries. Her two previous articles published in QuickRead detailed the earlier efforts to clarify what constituted “adequate consideration” for the valuation of entities held in ESOPs. On Oct ...

Book Review This fall, the American Bar Association released Shannon Pratt’s The Lawyer’s Business Valuation Handbook 3rd Edition. This publication has been edited by Roger J. Grabowski, FASA and Alina Niculita, ASA, ARM-BV, CFA, MBA. It is a comprehensive guide for attorneys (and judges) to enable them to better understand the substance and basis of the valuation expert’s work. In this article, Michael G. ...

Federal Rules and Regulations Governing ESOPs Business valuation reports of employer’s securities owned by ESOPs are subject to review by plan fiduciaries, government agencies, and IQPAs auditing the ESOP’s financial statements. Each of these readers have their own responsibilities to the participants and beneficiaries of the plans. This article will examine the federal rules and regulations governing ESOPS ...

Awaiting Proposed ESOP Regulations In April of this year, the author wrote “Adequate Consideration” Defined? for QuickRead. Since then, the author has regularly checked for updates from the Department of Labor (DOL) with respect to the definition of adequate consideration as it pertains to section 408(e) of the Employee Retirement Income Security Act of 1974 and employee stock ownership plans. Although ther ...

A Legislative Approach? In April of 2023, the United States Department of Labor (DOL) committed to move forward with a regulation to clearly detail “adequate consideration” in section 408(e) of the Employee Retirement Income Security Act of 1974 (ERISA). For decades the DOL has utilized litigation versus heeding Congress’s edict to enact regulations regarding adequate consideration and it seems as though ac ...

(Part I of III) This article about excess compensation is comprised of three-parts. Part one summarizes the facts regarding Clary Hood, Inc. v. Commissioner and the U.S. Tax Court’s holding. Part two of this series describes the Tax Court’s analysis and conclusions regarding the reasonableness of compensation issues. Part three describes the Tax Court’s analysis and conclusions regarding Section 6662 penalt ...

How to Avoid Them! A 409A valuation refers to a method of determining the value of a company's common stock. In other words, the 409A valuation is a method of calculating fair market value (FMV) according to the regulations under the Internal Revenue Code (IRC). This valuation can be carried out using various types of valuation methodologies, however, it is important to avoid pitfalls in 409A valuation when ...

The Future of Main Street Business Succession In 2001, veteran investment banker, Peter Christman, first identified the need for a holistic approach to preparing owners of midmarket businesses for sale and/or exit. He set about writing a book to address this. At the time, the first Baby Boomer was 56 years of age. Those Baby Boomers are now not so young. In this article, the author shares his impression of ...

Funding and Planning for Repurchase Obligation and the Use of COLI Understanding the potential detriments of unfunded (or under-funded) repurchase agreements, the ability to put the proper insurance in place to adequately address the financing of retirement benefits for ESOP shareholders has been proven to be a prudent financial decision for many companies. There are many significant benefits to being an em ...

Popular Plans to Incentivize and Retain Talent Employees and executives can get added compensation in addition to their salaries. In some cases, these benefits could exceed the salary. Most of these benefits are contractual and, where there is a discretionary element, it is usually awarded by the board of directors. This article provides a round up listing of the more popular benefits. Not included are stan ...

Repurchase Obligation Liability There are certain valuation aspects that are unique to employee stock ownership plan (ESOP) sponsor company valuation engagements. The ESOP repurchase obligation is one of those aspects. There is a diversity of practice in the valuation profession as to how to treat the repurchase obligation for sponsor company valuations performed for ESOP administration purposes. There are ...

A Leverage ESOP versus a Non-Leverage ESOP An employee stock ownership plan (ESOP) is a qualified retirement plan that allows employees to hold equity in the sponsor company that employs them. There are various strategies that may be considered when the sponsor company forms an ESOP. One important structural decision regarding the ESOP formation is whether the ESOP will be leveraged or non-leveraged. This d ...

In the Formation of an ESOP Mr. Robert Reilly, in a two-part January 2020 QuickRead article, as published by NACVA, provides a detailed and learned discussion regarding the role a valuation analyst might play in the early stages of the formation of an Employee Stock Ownership Plan (ESOP). This paper is not intended to be, in any way, a critique of Mr. Reilly’s presentation, but rather an appendix highlighti ...

Robert Reilly Shares His Thoughts on Impressions Should a valuation analyst accept an ESOP valuation engagement? That is the question raised by Michael McKean in his article written in response to the recent QuickRead article series by Robert Reilly. In this article, Mr. Reilly shares his thoughts on the subject matter. I am old enough to remember the early television show, The Original Amateur Hour. I star ...

In an ESOP Formation Financial Feasibility Analysis (Part II of II) This is the second of two-part article that discusses ESOPs. In this part, the author focuses on quality of earnings, liquidity, and plan design analyses. Owners of a private company who are looking for an exit strategy may consider the sale of all (or part) of the company to an employee stock ownership plan (ESOP). Such a strategy may be p ...

In an ESOP Formation Financial Feasibility Analysis (Part I of II) This two-part article discusses ESOPs. Owners of a private company who are looking for an exit strategy may consider the sale of all (or part) of the company to an employee stock ownership plan (ESOP). Such a strategy may be particularly attractive to baby boomer private company owners who are seeking retirement and liquidity and who would p ...

Best Practices: Thought Leadership in Valuation, Damages, and Transfer Price Analysis This fall, Robert F. Reilly and Robert P. Schweihs published Best Practices: Thought Leadership in Valuation, Damages, and Transfer Price Analysis. The book celebrates the 50th anniversary of Willamette Management Associates and is intended to present thought leadership. The topics selected for inclusion are topics that th ...

December 2018—U.S. Tax Court on Qualified Appraisals and Gill v. Gill, Minnesota’s Supreme Court Rules on the Status of Earn-Outs in Dissolution Cases The U.S. Tax Court issued two valuation memorandums in September and October 2018. Each memorandum serves as a reminder of the importance of attaching a qualified appraisal. The issue in Presley v. Commissioner, T.C. Memo. 2018-171 (October 15, 2018) was whet ...

Insights for Your Practice Four cases are presented in this article that provide valuation, litigation support professionals, and M&A advisors insight regarding how courts are addressing damages claims, challenges to experts, appraisal action challenges, and claims of fraud and breach of contract in connection with M&A transactions. Although the cases are from Delaware and California, they provide i ...